HB 256 Would Roll Back 2016 Sovereign Immunity Decision

A bill in the Georgia General Assembly would effectively undo the Georgia Supreme Court’s decision in Rivera v. Washington, 298 Ga. 770 (2016). House Bill 256 would amend OCGA § 5-6-34(a) to allow direct appeal, as a matter of right, from:

[a]ll judgments, orders, or rulings denying or refusing to grant immunity to one or more parties based upon sovereign, official, qualified, or any other immunity established by the United States Constitution or the Constitution or laws of this state, when such party or parties are governmental entities, officials, employees, or agents.

In Rivera, the Supreme Court held that orders denying motions to dismiss based on sovereign immunity were not appealable as of right under the collateral order doctrine. 298 Ga. at 778. Under Rivera, such orders can only be appealed where there is a statutory basis for an appeal, such as the interlocutory review procedure in OCGA § 5-6-34(b). Rivera overruled the Court of Appeals’ decision in Board of Regents of the University System of Georgia v. Canas, 295 Ga. App. 505 (2009), under which orders denying sovereign immunity were directly appealable as collateral orders.

HB 256 would essentially restore Georgia law to the state it was in after Canas but before Rivera. Orders denying motions to dismiss (or for summary judgment, etc.) on immunity grounds would be appealable as of right without following interlocutory review procedures.

Note that it doesn’t go both ways: orders granting immunity would not be made appealable as of right. So HB 256 benefits governmental entities and their employees, and hurts anyone trying to sue them. Of course, orders granting immunity are often directly appealable on other statutory grounds (for example, as final judgments under OCGA § 5-6-34(a)(1), as orders granting summary judgment under OCGA § 9-11-56(h), or as orders certified under OCGA § 9-11-54(b) in cases involving multiple claims or parties). But not all will be.

Also note that HB 256 allows direct appeal from orders “refusing to grant immunity,” not just orders “denying” immunity. If a party has moved to dismiss based on immunity, and the trial court then issues an order on a different subject without mentioning immunity or the motion to dismiss, is that an order “refusing to grant immunity”?

To be clear, HB 256 isn’t any kind of a repudiation of the Supreme Court’s decision in Rivera. In Rivera the Court explicitly contemplated that the legislature might step in to create a statutory appeal mechanism like this one. 298 Ga. at 778.